“What counsel say to you is not evidence. They areadvocates, not witnesses. Their role is to presenttheir respective cases, to question witnesses and toadvance arguments on the evidence for you to consider.So where a witness agrees with a proposition ina question then it is the reply of the witness that becomes the witness's evidence. Where a witness does not accept the factual proposition in the question thenthe question itself is not evidence. Counsel are quite entitled to and do, of course invite you to reach certain conclusions on the evidence. They cannot give evidence of what did or did not happen,they can only make submissions on the evidence andinvite you to conclusions on it.”
“I am evil, I did this.”
“If you are sure that two of the babies…had Actrapid, manufactured insulin, inserted into the infusion bag that were set up for them 8 months apart in August 2015 and April 2016 respectively, and you are sure that that was done deliberately, you then have to consider whether that may have been a coincidence, two different people independently acting in that way or were they the acts of the one person and, if so, who.”
“a serious life threatening condition and found only as a complication of clinical care. If the volume of air is sufficiently large, the result is fatal. Direct injection of air via a syringe and needle is always intentional. The injected air passes through the veins eventually reaching the right side of the heart and through the pulmonary artery into the lungs. The air functions like a “bolus” or “clot” and has the same effect as a solid embolus. It obstructs the blood supply and causes rapid demise and death.”
“if the pattern is the same, it’s more likely that the cause is the same.”
“I’m not using discolouration alone… it’s the constellation of features, not just of the clinical discolouration, although that absolutely forms a part of it because what has been described by clinicians, quite consistently, does not fit with any other known pathological process that I have seen in a neonate.”
“those types of skin lesions have been previously described in air embolus. ..we’re looking for these patchy – not mottling…, I won’t use that term because that will confuse people into thinking that mottling that we see in babies when they are in extremis for other reasons – these were described as tracking lesions, in some cases they were described as circular/oval lesions with a reddy brown discolouration that came and went.”
“You can’t make an explanation up. You look for a differential diagnosis of possible causes and then either confirm or exclude them, which is what I did.”
“A strange pattern over the tummy area – over the abdomen – which did not fit with the poor perfusion. In between the chest – upper legs – the rest was still pink but there were these kind of strange purple patches that appeared over the outside of his tummy…there were patches in one area then there were some in the other – some of it was still nice and pink – but it was certainly unusual and not fitting with a baby that had completely shut down or poor perfusion.”
“Finally, and of greatest concern, Dr Evans makes no effort to provide a balanced opinion. He either knows what his professional colleagues have concluded and disregards it, or he has not taken steps to inform himself of their views. Either approach amounts to a breach of proper professional conduct. No attempt has been made to engage with the full-range of medical information or the powerful contradictory indicators. Instead the report has the hallmarks of an exercise ‘working out an explanation’ that exculpates the applicants. It ends with tendentious and partisan expressions of opinion that are outside Dr Evans’ professional competence and have no place in a reputable expert report.”
“In relation to the respective submissions, it is, as the prosecution submit, important to contextualise the role of Dr Evans at the various stages of the investigation into the events. At the outset there was a large number of incidents that merited investigation. There needed to be a review and sift in order to identify those cases in which there was no identifiable medical cause or some causative negligent act or omission which, prima facie, were cases in which a baby suffered an event or collapse, in some cases dying, for no apparent reason. The offer of Dr Evans to conduct that initial review for a sifting process was not inappropriate or unreasonable in the circumstances. His initial sift identified incidents relating to a large number of apparently unexplained incidents relating to babies on the unit and his preliminary views as to possible mechanisms responsible for some of the events. I accept the prosecution’s submissions in relation to the reasonableness of the approach taken by Dr Evans in this regard and the fact that this did not amount to inappropriate partiality or lack of independence. Thereafter, again, it was not in my judgment unreasonable or inappropriate for Dr Evans to provide some direction and judgment structure as to the way forward in relation to identified cases: he had the necessary knowledge and expertise. His role did not amount to acting as an investigator or director of the investigation to the extent that it precluded him from being an expert witness in the case. It is to be noted that it was in consequence of the sifting process undertaken Dr Evans identified that in two cases, namely [Baby F]…and [Baby L] …a baby was deliberately poisoned with synthetic insulin which provided compelling evidence of someone in the unit deliberately harming babies. His opinions in relation to the cases were given without knowledge [of] the other material in the case relating to shift patterns and potentially incriminating material relating to the defendant, and there is evidence from other experts supporting some of the conclusions reached by Dr Evans. These matters are not, of themselves, determinative of the question of the appropriateness of Dr Evans as an expert witness but they are matters relevant to the complaints giving rise to the application that he should, in effect, be disqualified as an expert witness in the case due to lack of independence and credibility. In relation to his evidence generally and particularly under cross-examination and the complaints that he was subjective, emotive, dogmatic and biased, both in terms of the content of his answers and the way in which he behaved, I accept that at times Dr Evans, particularly when asked repeated questions on a topic to which he believed he had given an answer engaged in a form of argument and, on occasions, he appeared to be frustrated by the persistence of the questioning and/or was dismissive of suggestions. He was often prolix and would answer a question by an explanation rather than directly. However, none of these instances, in the context of robust cross-examination or otherwise, whether taken either individually or collectively, with or without the criticisms made of his alleged role and attitude, provides sufficient evidence meriting the exclusion of the evidence of Dr Evans on the basis that he has failed to act to a standard and in a way required of an expert witness. They are all matters that are capable of being relevant to the assessment by the jury of his evidence: it is for them to determine, as with any witness, his reliability, having regard to all the evidence in the case. Similarly, I decline to exclude the evidence under section 78 of PACE: the admission of this evidence would not have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. The matters raised have been and remain capable of being addressed within the trial process and can be the subject of comment and submissions to the jury on all the evidence placed before them. Accordingly, the primary applications by the defence are refused. The application to adduce the evidence of the adverse judicial comments of Jackson LJ in the relevant [decision on the papers], which is not opposed by the prosecution, is granted. It is relevant material for the consideration of the jury in relation to the assessment of the compliance of Dr Evans with his obligations as an expert witness. It will be necessary to identify the way in which this is to be done. It is to be hoped that this can be achieved by agreement. If not, then I will deal with it as a case management issue.”
“(1) If there is no evidence that the crime alleged has been committed by the defendant there is no difficulty – the judge will stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example, because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge concludes that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict on it, it is his duty, on a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’ reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence on which the jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury.”
“I am satisfied that there is a sufficient body of accepted expert medical opinion that the exogenous administration of air into the venous system can cause air embolus leading to collapse and potentially the death of a baby. Because of the rarity of cases in which air embolus is identified in a fatal collapse there is limited medical literature and research and the level of clinical expertise is also necessarily limited. Professor Arthurs and Dr Marnerides were conspicuously careful not to go further than their specialist expertise would permit them and emphasised any conclusions to be drawn were for those with clinical expertise. The fact that their evidence was not, of itself, diagnostic of air embolus is not determinative as to whether the evidence of clinical neonatologists is admissible. Such criticisms as are made by the defence of Drs Evans and Bohin and the bases for their conclusions are not sufficient to render their evidence inadmissible; the assessment of the validity of the criticisms and the weight to be attached to their opinions is for the jury. In the context of other circumstantial evidence, including the fact that, in the cases of two other babies not the subject of these applications someone in the NNU deliberately sought to harm them by adding insulin to their nutrition and the circumstances and coincidence of the defendant’s presence in the unit on each of the occasions of the sudden collapse of a baby, in some cases at the cot or incubator side, and her admissions, I am satisfied that the evidence sought to be excluded is admissible expert evidence for the jury to consider. I am also satisfied that, in respect of Counts 1, 2, 4 and 16, there is a body of evidence on which the jury, depending on their findings of fact and the inferences they draw, could properly come to the conclusion that the defendant is guilty. I refuse the application for those counts to be withdrawn from being determined by the jury. Similarly, I refuse the application that the evidence of air embolus should be withdrawn from the jury on Counts 3, 5, 12, 17 and 20.”
“In addition, in considering reliability, and especially the reliability of expert scientific opinion, the court must be astute to identify potential flaws in such opinion which detract from its reliability, for example: a. being based on a hypothesis which has not been subjected to sufficient scrutiny (including, where appropriate, experimental or other testing), or which has failed to stand up to scrutiny; b. being based on an unjustifiable assumption; c. being based on flawed data; d. relying on an examination, technique, method or process which was not properly carried out or applied, or was not appropriate for use in the particular case; or e. relying on an inference or conclusion which has not been properly reached.”
“If you are sure that someone on the unit was deliberately harming a baby or babies you do not have to be sure of the precise harmful act or acts; in some instances there may have been more than one. To find the defendant guilty, however, you must be sure that she deliberately did some harmful act to the baby the subject of the count on the indictment and the act or acts were accompanied by the intent and, in the case of murder, was causative of death, as set out in the section below ‘Directions of law relating to the offences’.”
“In the case of each child, without necessarily having to determine the precise cause or causes of their death, and for which no natural or known cause was said to be apparent at the time, you must be sure that the act of acts of the defendant, whatever they were, caused the child’s death, in that it was more than a minimal cause. The defendant says that she did nothing inappropriate, let alone harmful to any child. Her case is that the sudden collapses and deaths were or may have been from natural causes or from some unascertained reason or from some failure to provide appropriate care and were not attributable to any deliberate harmful act by her.”
“But particular caution is needed where the scientific knowledge of the process or processes involved is or may be incomplete. As knowledge increases, today’s orthodoxy may become tomorrow’s outdated learning.”
“… a clear distinction to be drawn between a matter which is (i) an ingredient of the offence; and (ii) a merely evidential – or ancillary – issue. It is common ground that on the latter there is no need for jury unanimity (or a Brown direction).”
“… is confined to those cases when, first, there is an appreciable danger that, when the jury is deciding whether they are agreed on the matter that constitutes the relevant ingredient of the offence, some may convict having found a particular matter proved as constituting the ingredient whilst others may find a wholly different matter or different matters proved as constituting the ingredient. Therefore, when the factual bases of the crime charged (e.g. as set out in the particulars) are, in reality, individually coterminous with an essential element or ingredient of the offence , then it appears it is necessary for a Brown direction to be given … This, it is to be emphasised, does not require each juror to follow the same route through the evidence to reach the decision that a particular ingredient is made out. Secondly, a Brown direction should be given when two distinct events or incidents are alleged, either of which constitutes the ingredient of the offence charged … . Third, a Brown direction should be given when two different means of committing the offence may give rise to different defences …”
“Since the air bubbles are quickly absorbed and disappear, the effect is transient, often lasting only seconds or minutes. Consequently, the pale or white skin discolorations are often described as migrating, as patches appear and disappear. However, pale or white patchiness of the skin are non-specific, and can also be due to transient blood vessel dilation and contraction in the skin caused by other conditions (eg hypothermia, sepsis, allergy, virus, immune reaction). It is very difficult, if not impossible, to distinguish pale or white skin discoloration due to air embolus from other causes. The only skin discoloration that is specific to air embolus is “bright pink vessels against a generally cyanosed cutaneous background”(ref: Lee and Tanswell, 1989). Air embolus can occur without any skin discoloration.”
“23. Evidence (1) For the purposes of an appeal, or an application for leave to appeal, under this Part of this Act the Court of Appeal may, if they think it necessary or expedient in the interests of justice – … (c) receive any evidence which was not adduce dint he proceedings from which the appeal lies. … (2) The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to – (a) whether the evidence appears to the Court to be capable of belief; (b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal; (c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and (d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings. …”
“… it is well understood that, save exceptionally, if the defendant is allowed to advance on appeal a defence and/or evidence which could and should have been put before the jury, our trial process would be subverted. Therefore if they were not deployed when they were available to be deployed, or the issues could have been but were not raised at trial, it is clear from the statutory structure, as explained in the authorities, that unless a reasonable and persuasive explanation for one or other of those omissions is offered, it is highly unlikely that the ‘interests of justice ’ test will be satisfied.”
“The giving of a reasonable explanation for failure to adduce the evidence before the jury again applies more aptly to factual evidence of which a party was unaware, or could not adduce, than to expert evidence, since if one expert is unavailable to testify at a trial the party would ordinarily be expected to call another unless circumstances prevented this. Expert witnesses, although inevitably varying in standing and experience, are interchangeable in a way in which factual witnesses are not. It would clearly subvert the trial process if a defendant, convicted at trial, were to be generally free to mount an expert case which, if sound, could and should have been advanced before the jury.”
“This trial is now in its closing stages. The jury was sworn on10th October 2022 and is considering its verdicts on 7 charges of murder and 15 charges of attempted murder of neonates in the Countess of Chester Hospital, Chester allegedly committed by the defendant in the course of her duties as a neonatal nurse at the hospital between June 2015 and June 2016. This is a very high profile case which has been reported by many mainstream media organisations over its duration and has been the subject of a very large volume of communications over social media platforms. As is not uncommon in such cases, there have been a large number of unsolicited communications with the court and those representing both the prosecution and the defence from members of the public containing ‘information’ about the case. The jury retired to consider its verdicts at 13:00 hours on Monday 10th July. Their deliberations were interrupted between 17th and 21st July and were resumed on 24th July. The jury did not deliberate on 31st July. At shortly after 15:00 hours yesterday, 2nd August, during the 13th day of their deliberations, following up a phone call to the court office, an e-mail was received from a member of the public to the effect that she has a café and a customer who “came in a few time” (sic), who she identified by their first name and a description, and who was a juror in this case, had been talking about the case on a few occasions, describing some of the evidence and events that had occurred during the trial, and that the jury “have already made up their minds about her case from the start”, which was a reference to the defendant’s case. She hoped this information would be passed on to “the defence attorney.”
“This further ruling relates to the potential jury irregularity upon which I initially ruled on 3rd August. The reasons for my ruling at that time are set out in writing in a document of the same date. I do not repeat the background to the issue up to that point. The situation at 3rd August is set out in Paragraph 6 of my original ruling. It has now moved on. The caller to the court has been identified as [KR]. She was spoken to by the defendant’s solicitor on Tuesday 8th August following an eventual response to the e-mail referred to in paragraph 2 of my original ruling requiring identification and contact details. She informed him that she worked in a café [which was named] and referred to matters that had been contained in the original e-mail; the customer was called [BC], she gave a description of him, said he lived next door to her at [an address was given] and she had not seen him for a number of weeks but he had been a regular customer in the café during the trial. She sent a photograph of [BC]. At the request of the defence, I directed that further enquiries be made by the GMP [Greater Manchester Police] as to whether there was any link between the address and any jurors in the case and that a witness statement be taken from [KR] covering the points she raised with the defence solicitor and there should be research into her and [that café] and other potential links. This morning, having received the results of the ensuing enquiries conducted by DI Michelle Buchannan of the GMP, including a witness statement from [KR] dated9th August 2023 , I separated the juror believed to be [BC] from the other jurors and, after hearing submissions from counsel on both sides, sitting in Chambers in the courtroom with counsel and with the defendant present, I asked a series of agreed questions of the juror. He confirmed he was the person in the photograph; it was an old photograph and was his WhatsApp image….the address [was that] of his girlfriend, [CD]. His home was at another address that he gave; he was in employment and has been for many years. He has 3 children, 2 of whom are twin daughters, he had never visited [that] café …though he did know about it; [CD] had worked there until recently when she was assaulted by the owner, an incident to which the police were called. He said he had never disclosed his role as a juror in this case to anyone at the café, he had definitely not told anyone associated with the café about features of the evidence in the case, never suggested the defendant had attempted to deflect blame onto other nurses and never suggested to anyone at any stage that the jury had already made its mind up. He had no difficulty with adhering to his oath/affirmation of trying the case on, and only on the evidence. In the light of the identified juror being [BC] and the terms of the various pieces of information imparted at different times by [KR] , the defence urged me to require her to give evidence so that I could determine whether her accounts were credible and reliable and that the juror, contrary to the answers he gave to me, had said the things he is alleged to have said. In this way, it is said, I can determine what took place and whether there has been an irregularity in that the juror disobeyed the clear instructions not to speak about the case, keep an open mind and to decide the case on all the evidence applying the directions of law given when the case is summed-up. I indicated that I proposed to take no further action and would give my reasons in writing. These are my reasons. GMP records show that at around 10:00 hours on 2nd August there was an incident in [the café] …in which [CD] was assaulted by the owner, in a dispute over a phone. He admitted to the police at about 12:30 that day that he had squared up to her. It is not in issue that [the owner] is the partner of [KR] and the neighbour of [CD]. The court sat a full day; the jury was deliberating. The phone call to the court that day was made about half an hour before the e-mail sent at 15:09 hours to which I referred in paragraph 1 of my ruling of 3rd August. The narrative in that e-mail began “I have a café and has a customer who came in a few time and was discussing information about the case and about the jury”…”
“First and foremost, it was a matter solely for the assessment and discretion of the judge how to discharge his duty of investigating the alleged irregularity, following the Steps in Section 8 of the CriminalPractice Direction 2023 . There was no obligation to conduct what would have amounted to a “mini-trial” of the juror’s alleged misconduct, with KR called and (presumably) cross-examined, and potentially with the need for further questioning of the juror, when the judge was satisfied on the material already before him that he could deal with the matter fairly and appropriately. The facts relied upon by the judge in reaching his conclusion spoke for themselves. Second, the judge was fully entitled to attach particular weight to his own assessment of the juror’s integrity and credibility in answering the agreed questions put to him by the judge, answers which disproved the allegation of misconduct. In a trial of this length and seriousness the judge inevitably becomes acutely aware of the conduct of each juror day by day; an experienced trial judge observes their reactions to the evidence and submissions as the case progresses. I note that during submissions in the chambers proceedings on 3 August, prior to his first ruling, the judge described the conduct of the juror in question in the following way (at CB 9722): “[The] conduct of the potentially identifiable juror as a juror … I will say now has been, as far as I can tell, exemplary. He has all the hallmarks of someone who has paid meticulous attention to the case. He has been entirely reliable, even, if you recall, at a time when he was medically not well and in pain. He still assiduously attended to his duties as a juror and came here and has obviously been paying very close attention to everything that has been said.”